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Sullivan v. Coverings & Installation

October 8, 2008

FRANCIS AND ANIELA SULLIVAN, PLAINTIFFS-APPELLANTS,
v.
COVERINGS & INSTALLATION, INC., FRANK F. SETOLA, AND CHERYL A. SETOLA, DEFENDANTS-RESPONDENTS, AND ROBERT POST HEATING & COOLING, INC. AND ROBERT POST, INDIVIDUALLY,*FN1 DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2705-03.

The opinion of the court was delivered by: Sapp-peterson, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted May 29, 2008

Before Judges Stern, Sapp-Peterson and Messano.

Plaintiffs, Francis and Aniela Sullivan,*fn2 appeal from the June 26, 2006 order denying their motion to reinstate their complaint against defendants, Frank and Cheryl Setola (Setolas) and Coverings & Installation, Inc. (Coverings) (collectively defendants), that had been dismissed a year earlier for discovery violations. They also appeal from the September 8, 2006 order denying their motion for reconsideration. We affirm both orders but clarify the status of the dismissed complaint.

The complaint, filed on June 17, 2003, arises out of a construction project dispute involving plaintiffs' residence located in Spring Lake. Plaintiffs contend they contracted with Setola*fn3 and Coverings, a corporation with which they claim Setola was affiliated either as a director, employee, principal or officer, to perform the work on their residence. Plaintiffs asserted claims of breach of contract and consumer fraud against Setola and Coverings. The complaint also alleged that the Setolas breached a written rental agreement for property they leased from plaintiffs that was also located in Spring Lake.

On January 16, 2003, before the civil action was filed, Setola was charged with theft by unlawfully taking or exercising control over certain moveable property belonging to Francis, N.J.S.A. 2C:20-3(a). A warrant was issued for Setola's arrest on August 28, 2003. The court granted a stay of the civil litigation pending disposition of the criminal matter. In a letter dated May 19, 2004, defendants' counsel notified the court and plaintiffs' counsel that the criminal matter had been dismissed, and the court thereafter lifted the stay. On June 21, 2004, the court granted defendants' motion to file an amended answer and third amended counterclaim against plaintiffs alleging, among other things, malicious prosecution and abuse of process.

Although there had been other discovery matters that prompted defendants to seek relief from the court, the discovery issue that ultimately resulted in the dismissal of plaintiffs' complaint involved the inspection of plaintiffs' home. On August 13, 2004, defendants sent a written request to plaintiffs' counsel requesting dates for their expert to inspect plaintiffs' residence. Defendants sought inspection dates for sometime in September. Plaintiffs did not respond to this request and defendants moved for an order compelling plaintiffs to schedule the inspection. The court entered an order on December 3, 2004, directing plaintiffs "to provide alternative dates for the scheduling of a structural inspection within 5 days" of the date of the order. Plaintiffs failed to do so. Defendants sent additional correspondence to plaintiffs' counsel dated February 22 and February 28, 2005, requesting inspection dates. The inspection was ultimately scheduled and took place on March 10, 2005. According to defendants, plaintiffs interfered with the inspection and it was not completed.

Defendants filed a notice of motion to dismiss the complaint for plaintiffs' failure to permit the inspection. The motion was originally returnable April 15, 2005, but was adjourned to afford plaintiffs an opportunity to submit opposition. Plaintiffs claim they submitted opposition, which included a certification from Francis dated May 6, acknowledging that he was present during the inspection and explaining that in view of a restraining order in place against Setola, he "felt it was necessary to keep a close watch on [Setola's] actions . . . during the inspection." Francis also stated that he believed Setola and the expert left the premises because they had completed the inspection. He suggested that both counsel be present if another inspection was necessary.

The motion was heard without oral argument and the order dismissing the complaint is boldly stamped "NO OPPOSITION RECEIVED." It therefore appears the court never considered plaintiffs' opposition.*fn4 Although the court dismissed the complaint, the order provided that "[plaintiffs] may arrange inspection within 30 days of [the] order and apply for reinstatement within 30 days of [the] prior period." Plaintiffs did not seek reconsideration of this order or reinstatement during the next thirty days. Nor did plaintiffs seek leave to file an interlocutory appeal of the order.

Nearly one year later, on May 24, 2006, plaintiffs moved to reinstate the complaint. Plaintiffs' counsel submitted a certification in support of the motion in which he stated,

I do not recall receiving from the defendant the Order of May 27, 2005 dismissing Plaintiff[s'] Complaint and it was not until March 23, 2006 when my secretary contacted the Court in order to find out the status of the case that I was advised that Plaintiff[s'] Complaint had been dismissed . . . .

Francis also submitted a certification in support of the application. He stated that he was unaware the complaint had been dismissed, thought the inspection had been completed on March 10, 2005, and offered to schedule a second inspection at the convenience of defendants. Although the dismissal order bore the notation "NO OPPOSITION RECEIVED[,]" the reinstatement motion did not address ...


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